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2018 DIGILAW 4535 (MAD)

M. Gandhimathi v. P. Baskaran

2018-12-18

T.RAVINDRAN

body2018
JUDGMENT : The civil revision petition is directed against the Judgment and Decree, dated 30.09.2008, passed in A.S.No.101 of 2006, on the file of the Subordinate Court, Tuticorin, reversing the Judgment and Decree, dated 28.10.2005, passed in O.S.No.763 of 2004, on the file of the Additional District Munsif Court, Tuticorin. 2. The parties are referred to as per the rankings in the Trial Court for the sake of convenience. 3. Suit for recovery of money. 4. The case of the plaintiffs in brief is that they are sisters and the first plaintiff had entrusted her jewels to the second plaintiff for the safe custody and the second plaintiff and defendants are known to each other and good friends and accordingly, the defendants, being engaged in the textile business, sought for the loan of Rs.10,000/- from the second plaintiff and agreed to repay the same within three months, when the departmental loan would be released to them and accordingly, induced the second plaintiff to pledge the first plaintiff's jewels with the Bank and to pay the sum as requested and accordingly, it is stated that the second plaintiff has pledged the jewels and paid Rs.9,000/- on 24.02.2002 and Rs.1,000/- on 12.03.2002 and acknowledging the same, the defendants had issued a stamped receipt and despite the borrowal of the said sum from the second plaintiff, the defendants failed to repay the amount and in this connection, the plaintiffs preferred a complaint to the Police and on enquiry by the Police, the defendants promised to settle the amount within a particular period of time, however, thereafter, they had failed to settle the loan amount due to the plaintiffs and accordingly, after the correspondence of notices between the parties, according to the plaintiff, they had been necessitated to lay the suit for the recovery of the suit amount. 5. The defendants resisted the plaintiffs' case by contending that they have no connection whosoever with the pledging of jewels by the second plaintiff with the Bank and it is contended that the second plaintiff is doing moneylending business and collecting kandhu vatti from the borrowers and falsely lodged the complaint against the defendants and on enquiry, the defendants agreed that they would pay a sum of Rs.4,000/- to the plaintiffs to save the job and the case of the plaintiffs that the defendants acknowledged the borrowed sum by issuing a stamped receipt is false. There is no need on part of the defendants to borrow any sum from the second plaintiff and due to enmity, the second plaintiff had fabricated the stamped receipt and filed the suit and hence, the suit laid by the plaintiffs is liable to be dismissed. 6. In support of the plaintiffs' case, P.Ws.1 and 2 were examined and Exs.A1 to 10 were marked and on the side of the defendants D.Ws.1 and 2 were examined and no document was marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Trial Court was pleased to decree the suit as prayed for. Aggrieved over the same, the defendants preferred the first appeal. The First Appellate Court, on a consideration of the materials placed on record and the submission made, was pleased to set aside the Judgment and Decree of the Trial Court and by way of allowing the appeal preferred by the defendants, dismissed suit laid by the plaintiffs. Impugning the same, the present civil revision petition has been laid. 8. The plaintiffs have laid the suit for recovery of money from the defendants, on the footing that the defendants had borrowed a sum of Rs.10,000/- from the second plaintiff and acknowledging the same, issued a stamped receipt and thereafter, failed to repay the amount, despite the repeated demands and issuance of notices. 9. Per contra, the defence has been taken by the defendants contending that they had not borrowed any sum from the second plaintiff as putforth in the plaint and the second plaintiff is engaged in money lending business and used to collect exorbitant interest from the borrowers and accordingly, lodged a false complaint to the Police and due to the Police pressure, the defendants agreed to pay the sum to the plaintiffs and no stamped receipt had been issued by them in favour of the second plaintiff as projected and therefore, prayed for the dismissal of the plaintiffs' case. 10. Inasmuch as the defendants had disputed the borrowal of any sum from the second plaintiff, as projected in the plaint, it is for the plaintiffs to establish the same by placing acceptable and reliable materials. Now, according to the plaintiffs, with reference to the sum borrowed from them by the defendants, they had issued a stamped receipt, which document had come to the marked as Ex.A1. Now, according to the plaintiffs, with reference to the sum borrowed from them by the defendants, they had issued a stamped receipt, which document had come to the marked as Ex.A1. However, as rightly pointed by the First Appellate Court, the stamped receipt marked as Ex.A1 does not bear any date, month and year and it is seen that a revenue stamp had been affixed containing the signature of the second defendant on the stamp and above the same, the signature of the first defendant is seen and it recites as if the first defendant had borrowed Rs.9,000/- on 24.02.2002 and further, there is a noting that on 12.03.2002, Rs.1,000/- + Rs.9,000/- = Rs.10,000/-, this is what contained in the stamped receipt, accordingly, what is the total amount borrowed by the defendants based on the same, there is no clear indication in the stamped receipt. Furthermore, what is the interest, which the defendants are liable to pay for the alleged borrowed sum, whether the interest is calculated per month or year and what is the quantum of the interest amount, nothing mentioned in the document. Furthermore, what is the interest, which the defendants are liable to pay for the alleged borrowed sum, whether the interest is calculated per month or year and what is the quantum of the interest amount, nothing mentioned in the document. Furthermore, the plaintiffs have not come forward with the case, who was the scribe of the stamped receipt and in whose presence, the stamped receipt had been obtained from the defendants and in such view of the matter, when there is no proper explanation on the part of the plaintiffs as to why the signature of the first defendant had not been obtained on the revenue stamp and furthermore, when during the course of evidence, the second plaintiff had putforth the case that one Kresh had written the stamped receipt, when particularly the defendants had disputed the execution of the stamped receipt in connection with alleged borrowal, as rightly determined by the First Appellate Court, the plaintiffs should have endeavoured to examine the other witnesses associated with the alleged borrowal of the defendants from them and the issuance of the stamped receipt and in such view of the matter, when based on Ex.A1 – stamped receipt, there is no clear case projected as to what is the actual amount borrowed by the defendants, on what date, they had borrowed the sum and what is the rate of interest, which the defendants are liable to pay and when the stamp paper does not bear any date, month and year and when the plaintiffs had failed to establish that it is only the defendants, who had executed the stamped receipt as putforth by them and the plaintiff had not chosen to examine any person associated with the execution of the document, as rightly determined by the First Appellate Court, merely based on Ex.A1, we cannot fasten the liability on the part of the defendants by directing them to pay the borrowed sum as averred in the plaint. 11. 11. The main contention putforth by the plaintiffs' counsel that the defendants, in their written statement, had admitted before the Police that they would pay the amount to the plaintiffs and if the defendants had not borrowed any sum from the plaintiffs, as now putforth, the defendants would not have admitted their liability before the Police and accordingly, contended that on the basis of the written pleas, the plaintiffs' case should have been accepted by the First Appellate Court. However, the defendants would contend that fearing the Police threat and action, to save the job of the first defendant, they had been forced to admit that some amount is due to the plaintiffs and by way of the same, no liability could be fastened on the defendants. 12. Even assuming for the sake of argument, such an admission had been emanated from the defendants at the Police Station, when according to the defendants, fearing Police threat and action, they had admitted the liability, in such view of the matter, when the alleged admission is found to have occurred in the presence of the Police Officer, by way of the same alone ipso facto, we cannot fasten liability on the part of the defendants. When as per the case projected by the plaintiffs, it seems to be a civil nature, it does not stand to the reason as to why the plaintiffs had resorted to the police action in connection with same. That apart, what is the nature of the complaint lodged by the plaintiffs against the defendants, what is the further action taken by the Police with reference to the same and who had enquired the defendants, with reference to the abovesaid factors, no proper material has been placed by the plaintiffs, by summoning the concerned Police records and also by examining the concerned Police officer. In such view of the matter, merely from the admission of the defendants in the written statement that they had admitted the liability before the Police and thereby, the plaintiffs' case should be accepted, as such, cannot be countenanced, when it is seen that no amount of confession made by the defendants before the Police would be admissible in evidence and thereby, no liability could be fixed on them by way of the same. Therefore, the abovesaid aspect of the matter had been correctly determined Appellate Authority and failed to be taken note of by the Trial Court and in such view of the matter, the reliance placed by the plaintiff on the abovesaid alleged admission of the defendants at the Police Station would not in any manner be useful to sustain their case. 13. In connection with the similar facts and circumstances of the case, I had an occasion to determine the issue in a case in C.Panneerselvam vs. Manoharan, reported in 2017 (1) CTC 18 , wherein also it has been decided that the statement made before the Police by a litigant admitting the liability would be hit by Section 27 of the Indian Evidence Act, 1872 and the same would have no evidentiary value and cannot be used to fasten any liability on his part and the said position of law has been outlined in the decision as follows: “Indian Evidence Act, 1872 (1 of 1872), Section 27 – Statement before Police – Evidentiary value – Suit for Recovery of Money – Statement made by Defendant before Police, held, being hit by Section 27 has no evidentiary value and cannot be used to fasten any liability on defendant. In such a view of the matter, as rightly argued by the learned Counsel for the Defendant, no evidentiary value could be attached to the alleged statement said to have been made by the Defendant before the Police as found in Ex.X1. As rightly argued, the same would be hit under Section 27 of the Indian Evidence Act and therefore, no credence could be attached to Ex.X1 to fix any liability upon the Defendant to pay the suit claim.” 14. The plaintiffs' counsel further contended that the Trial Court, on a comparison of the signatures of the defendants in the stamped receipt marked as Ex.A1 with their signatures in the vakalat and the written statement, determined that the signatures in both the documents are found to be one and the same and on that basis, upheld the plaintiffs' case and according to him, the First Appellate Court had failed to take into consideration the abovesaid aspect of the matter and thereby, erred in dismissing the suit. Per contra, it is the contention of the defendants' counsel that the endeavour of the Trial Court. Per contra, it is the contention of the defendants' counsel that the endeavour of the Trial Court. in appreciating the signatures of the defendants with their signatures in the vakalat and the written statement, is per se illegal and unsustainable and the Court should sparingly endeavour to compare the signatures in the disputed documents as the same is the role of the the expert and furthermore, the Court cannot compare the signatures of the parties contained in the vakalat and the written statement and the abovesaid factor alone would vitiate the Judgment of the Trial Court. 15. No doubt, the Court is empowered to compare the signatures. However, when the Court assumes the role of the expert, the Court, while discharging the said duty, should proceed to furnish details as to on what basis it found the disputed signatures and the admitted signatures are similar or dissimilar. Without furnishing any reason, the mere assertion of the Court below that the disputed signatures and the other admitted signatures are found to be similar cannot be sustained in any manner. If the same is to be entertained, in my considered opinion, all the issues concerning the parties surrounding the genuineness of the documents one way or the other could easily be solved by comparing the documents and determining the same one way or the other and the same could be done even by a layman and not required to be done by the Judicial Officer and when the Court feels that the comparison should be done, accordingly should furnish reasons as to on what aspects, it has come to the conclusion that the disputed signatures and the admitted signatures are similar and on what aspects, the disputed signatures and the admitted signatures are dissimilar and what are the characteristics available in the signatures concerned for coming to the abovesaid conclusion and when without adverting to the abovesaid procedures, the Court should not endeavour to determine the similarities on a naked comparison by holding that the disputed signatures and the signatures of the defendants in the vakalat and the written statement are found to be one and the same. On a perusal of the Judgment of the Trial Court, it is seen that other than stating that on comparison of the disputed signatures and the signatures available in the vakalat and the written statement being one and the same, the Trial Court has not given any reason as to on what basis it has come to the said conclusion. In such view of the matter, it is found that the determination of the case by the Trial Court in favour of the plaintiffs based on the abovesaid exercise is found to be totally unacceptable and could not stand in the scrutiny of the eyes of law and liable to the set aside. That apart, the Trial Court has also committed a serious flaw in comparing the disputed signatures with the signatures of the defendants available in the vakalat and the written statement. When the vakalat and the written statement had emanated after the institution of the suit, no endeavour could be made to compare the disputed signatures with the signatures available in the said documents, which had come into existence after the institution of the suit. At the most, the Court should have endeavoured to compare the signatures only with the contemporaneous documents, in which the admitted signatures of the defendants are available. However, no such exercise has been done by the Trial Court. The upholding of the plaintiffs' case by the Trial Court based on the abovesaid exercise is liable to be set aside and the Appellate Court has rightly rejected the same. 16. As regards the position that the Court should be careful in comparing the disputed signatures with the admitted signatures and when the Court endeavours to take up the said task on itself should give reasons as to how it had come to the conclusion that the admitted and disputed signatures are either similar or dissimilar and with reference to the said aspects of the matter, in the decision in Sankara Narayana Pillai v. Ignatious Selvaraj, reported in 2017-4-L.W.830, this Court had opined as follows: “Evidence act, Section 73/signature, comparison by court, scope Court should be careful in comparing disputed signatures with admitted signatures – Court should give reasons as to how it has come to the conclusion that the admitted and disputed signatures are either similar or dissimilar. As rightly argued by the learned counsel for the petitioner, the Court below in the impugned orders have not cared to disclose or detail as to with what admitted signatures of the petitioner it had compared the disputed signatures. Therefore, it is unable to detect as to what are the admitted signatures of the petitioner with which the Court below had compared the disputed signatures and therefore, as rightly put forth by the learned counsel for the petitioner, the impugned orders are very silent with reference to the same and therefore, the impugned orders on that score are liable to be set aside. Further, according to the learned counsel for the petitioner, though the Court is empowered to compare the disputed signatures with the admitted signatures as per Section 73 of the Indian Evidence Act, in the light of the decision of the Apex Court and other pronouncements of the High Courts, the Court as a matter of prudence and caution, should be hesitant in giving its findings with regard to the identity of the disputed signatures and the admitted signatures and it is not advisable on the part of the Court to take upon itself the task of comparing the admitted signatures with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. 17. The same position has also been reiterated by this Court in the subsequent decision in Sivanappa Gounder vs. Subbammal, reported in 2018 (2) MLJ 720 . 17. The same position has also been reiterated by this Court in the subsequent decision in Sivanappa Gounder vs. Subbammal, reported in 2018 (2) MLJ 720 . That apart, as regards the position that the Court below had erred in comparing the disputed signatures with the signatures found the vakalat and the written statement, no legal sanctity could be attached as the Trial Court had erred in comparing the disputed signatures with the signatures available in the documents, which are post-litem-motem, without endeavouring to compare the disputed signatures with the documents antilitem-motem, the said position of law could also be gathered from the decisions in Central Bank of India vs. Antony Hardware Mart, reported in 2006 (3) CTC 39 and Chandramohan vs. Pushpa, reported in 2011 (7) MLJ 160 , wherein, it has been held that the Courts below ought not to have compared the disputed signatures with the signatures contained in the documents which had come into existence subsequent to the commencement of the dispute between the parties and on the other hand, if at all the Courts below endeavor to compare the signatures, they should only compare the signatures with the admitted signatures available in the admitted documents which are prior in point of time anterior to the commencement of the disputes between the parties. 18. In the memorandum of grounds of the civil revision petition, the plea has been taken that the first appeal preferred by the defendants is not at all maintainable by virtue of the provisions contained under Sub-Rule 4 of Section 96 of the Code of Civil Procedure, considering the amount for which the suit has been laid and on that footing also sought for the reversal of the Judgment and Decree of the First Appellate Court. However, during the course of arguments, the plaintiffs' counsel has not placed any submission with reference to the same. However, during the course of arguments, the plaintiffs' counsel has not placed any submission with reference to the same. Be that as it may, though the suit has been laid by the plaintiffs for the recovery of the sum of Rs.10,000/-, however, when considering interest from the date of the stamped receipt, dated 12.03.2002 to 12.09.2004, amounting to Rs.4,500/-, it is seen that the suit had been laid for Rs.14,500/- and accordingly, had paid the Court fees for the abovesaid value and when it is thus noted that the value of the subject matter of the suit is stated to be Rs.14,500/- and found to be exceeding Rs.10,000/-, it is seen that there is no bar on the part of the defendants to prefer the first appeal challenging the Judgment and Decree of the Trial Court and therefore, the abovesaid ground projected for upholding the plaintiffs' case, as such, cannot be countenanced in any manner. 19. In the light of the abovesaid discussions, when it is noted that the plaintiffs had failed to establish the borrowal of the suit sum by the defendants from the second plaintiff and the execution of the stamped receipt acknowledging the same and when the so-called admission of the defendants before the Police could not be relied upon for fixing any liability on their part and also the defendants having failed to establish the execution of the stamped receipt by the defendants by examining the persons associated with the same and accordingly, it is found that the First Appellate Court, on a consideration of the materials placed on record in the right perspective and also discussing the pros and cons of the same, both factually as well as legally, rightly determined that the Trial Court had erred in accepting the plaintiffs' case, in such view of the matter, the Judgment and Decree of the First Appellate Court setting aside the Judgment and Decree of the Trial Court and thereby, dismissing the plaintiffs' suit do not warrant any interference. 20. Resultantly, the civil revision petition is dismissed with costs.